Review of Occupational & Professional Licensing - Executive Order 2021-01
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Review of Occupational &
Professional Licensing
Executive Order 2021-01
SPENCER J. COX
Governor
DEIDRE M. HENDERSON MARGARET W. BUSSE JACOB HART
Lieutenant Governor Executive Director Deputy Director
June 25, 2021
The Honorable Spencer J. Cox, Governor of Utah
The Honorable Deidre M. Henderson, Lieutenant Governor of Utah
State Capitol
350 N State St
Salt Lake City, Utah 84114-2325
Re: Executive Order 2021-01 Requiring a Review of All Regulated Occupations and Professions
Dear Governor Cox and Lt. Governor Henderson:
On behalf of the Department of Commerce, I am pleased to submit the following report required
by Executive Order 2021-01. As requested, each division within the department evaluated
regulations within their purview that impact occupational and professional licensing. While all
divisions have some regulatory influence on Utah’s workforce, the Division of Securities,
Division of Real Estate, and Division of Occupational and Professional Licensing were found to
have direct impact, and are the focus of this report.
The Department has strived over the years toward its mission of strengthening trust in Utah’s
commercial activities by balancing the free flow of commerce with protecting the health and
safety of Utah citizens. Department staff and our various boards and commissions have
embraced the concept that while regulation is necessary, it can often create unintended
consequences that end up harming those it aims to protect or become outdated as the economy
and workforce needs shift. The efforts made with this concept in mind to right-size regulation
have elevated Utah as a leader in the nation for licensing reform.
However, as we undertook this comprehensive review of our regulations for Executive Order
2021-01, it became apparent that even with the intense focus we have placed on this mission,
regulatory creep was still an issue. As this report highlights, there are many areas that can be
improved upon. Many of the changes are already underway; however, not all the work needed
could be completed in the short six months allotted by the executive order. Many of the areas of
concern will require time and analysis to ensure that the proper solution is codified. Additionally,
many changes will require legislation.
Further, as the Department approached this review, it was evident that even as an agency
actively seeking reform opportunities, we could not always prevent unintended consequences
from forming within our regulation. This was especially evident in dated regulation that had not
kept up with technological and market needs.
It is our firm belief that in addition to being reasonable and reliable at the time they are enacted, regulation must remain relevant in order to best serve the public. Within this report, the various divisions share ideas to update statutes and rules. Further, as a Department, we propose a revision to Utah’s occupational and professional licensing reform structure that will leverage the efforts that all executive branch agencies have put forth over the last several months by standardizing the guiding principle that we should routinely take a fresh look at our regulations to ensure balance. The systematic licensing review process proposal found within this report will continue the hard work that our agency, and so many others, have undertaken at your direction. As stated in the Executive Order, “government should periodically review regulations to ensure they are serving their intended purpose.” It is our hope that resourcing robust and dispassionate licensing analysis will not only reduce frustration with the licensing reform process amongst stakeholders, but will both encourage government to keep pace with the need to evolve with changes in the economy and spur the long-term licensing reform necessary to open up pathways to economic opportunities for Utahns now and in the future. Sincerely, Margaret Woolley Busse Executive Director Department of Commerce State of Utah
Review of Occupational &
Professional Licensing in Response
to Executive Order 2021-01
Utah Department of Commerce
Margaret Woolley Busse – Executive Director
Jacob Hart – Deputy Director
Mark Steinagel –Director, Division of Occupational and Professional Licensing
Jonathan Stewart –Director, Division of Real Estate
Jason Sterzer – Director, Division of Securities
Report compiled by:
Chris Parker – Director, Division of Public Utilities
Carolyn Dennis – Management Analyst
REVIEW OF OCCUPATIONAL & PROFESSIONAL LICENSING
IN RESPONSE TO EXECUTIVE ORDER 2021-01
Overview .................................................................................................................................... 1
Scope of Review .................................................................................................................... 1
Process .................................................................................................................................. 2
SECTION I ................................................................................................................................. 3
Unnecessary and Amendable Rules ....................................................................................... 3
Division of Occupational and Professional Licensing (DOPL).............................................. 3
Division of Real Estate ........................................................................................................ 4
Division of Securities ........................................................................................................... 5
Removing Barriers .................................................................................................................. 5
Create narrower licenses from broad scope-of-practice licenses ........................................ 6
Competency measures to replace educationally-based requirements when possible ......... 6
Miscellaneous issues identified ........................................................................................... 7
Ongoing Departmental Rule Review ....................................................................................... 8
SECTION II ...............................................................................................................................10
Regular, Systematic Review of Professions ..........................................................................10
Regular, ongoing, impartial review by the executive branch ...............................................10
Ongoing legislative input to executive branch ....................................................................11
Licenses to consider for evaluation utilizing the proposed process ....................................12
SECTION III ..............................................................................................................................14
Required Actions ...................................................................................................................14
Modification to board and division duties ............................................................................14
Statutory changes ..............................................................................................................14
Considerations for Future Licensing Reform ..........................................................................16
APPENDIX................................................................................................................................17
Past regulatory changes ........................................................................................................17
Division of Occupational and Professional Licensing .........................................................17
Division of Real Estate .......................................................................................................29
Division of Securities ..........................................................................................................33OVERVIEW
Optimal systems of commerce enable creative and useful exchanges of goods and services in
ways that support human thriving and increase individual and societal wealth. Government is a
small but important component of a healthy commercial environment, enabling a system that
protects against predation. These protections decrease risk, and thus the ultimate cost, of
commercial exchanges. Effective and efficient regulation of conduct that might injure others instills
trust that ultimately adds more value than the regulation costs.
Nevertheless, the task of government regulation is not best undertaken with a set of constant
rules that, once adopted, simply continue in perpetual effectiveness. Rather, as people, skills,
technology, and markets change, government must constantly reevaluate rules to ensure they
are productive and add value to the commercial system, instead of burdening it.
Recognizing that constant evaluation of existing governmental rules and processes is necessary
and helpful, Governor Spencer J. Cox and Lt. Governor Deidre M. Henderson signed Executive
Order 2021-01, requiring state executive agencies to:
review administrative rules and other regulations for occupational or
professional licenses within the agency’s scope of authority and identify
rules and regulations that are no longer necessary or can be amended
to reduce barriers to working while still protecting the health, safety, and
well-being of Utah residents.1
Under this direction, the Department of Commerce undertook a rigorous review of its
administrative rules, agency practices, and the statutes authorizing those rules and practices.
Agency management also held 25 meetings with legislators, industry representatives, and reform
groups. Further, the department conducted a stakeholder survey seeking feedback on what was
and was not working in Utah licensing and received 80 responses. This report outlines the
department’s review process, the actions to which it has led, and numerous recommendations for
consideration by other policymakers.
Scope of Review
In response to Executive Order 2020-01, department management immediately began to
establish the scope of our review, which included a complete review of all statutes and rules
involving occupational and professional licensing within the department. While the Division of
Occupational and Professional Licensing (DOPL) is the largest and most obvious participant in
occupational and professional licensure within the department, each division was evaluated for
inclusion in the review. The Division of Real Estate (DRE) and the Division of Securities (SEC)
also license professionals and were included in this review.
Although other divisions’ work falls outside the scope of Executive Order 2020-01, the exercise
of considering whether they were included caused each division agency to give additional thought
to how that agency’s rules might affect work in the state. Some small rule changes to optimize
rule provisions in those divisions agencies are likely to follow, despite not being included in this
report.
1 https://rules.utah.gov/wp-content/uploads/Utah-Executive-Order-No.-2021-01.pdf
1 PageProcess
The department regulates numerous professions, each with its own statutory authorization and
many with their own specific sets of administrative rules. A department employee or board
member, and in many cases both, reviewed each rule to evaluate its fit under Executive Order
2020-01. In doing so, reviewers considered not merely the larger rule’s necessity, but each
element’s utility in meeting the statutory mandate underlying the rule.
Reviewers considered a number of factors in evaluating a rule’s necessity or advisability.
Executive Order 2020-01 required consideration of whether a rule is necessary or artfully targeted
to protect Utahns’ health, safety, or welfare. The department’s rules are largely compulsory under
federal or state statutes. Reviewers considered whether each element of each rule was required
by state or federal statute, whether a less restrictive way of satisfying the statute existed, or
whether the rule was discretionary. Where the rule and all of its elements are required by law, the
respective division has considered whether to make recommendations for statutory changes in
Section II of this report.
For discretionary rules, department leadership and each division considered the following
questions:
Why was the rule established?
Can the rule be repealed without the risk of significant, present, recognizable harm to the
public? If not, why not?
If a rule is necessary to protect against significant, present, recognizable harm to the
public, what is the narrowest way to provide that protection? Can portions of the rule be
eliminated?
Does the rule’s burden outweigh its benefit to the public? (Consideration of burdens should
include burdens to those seeking licensing, preserving current licensure, and the rule’s
general economic effect, including decreasing the supply of the particular service.)
Can the harm against which the rule protects be mitigated in a less burdensome way than
administrative rule?
For rules addressing process, not harm, can processes be made more user-friendly or
efficient?
The results of these reviews are reported in Section I of this report, with general discussion of the
findings followed by specific action already undertaken or to be undertaken. Section II includes a
variety of recommendations, encompassing a regular statewide process for systematic reviews
of individual professions and recommendations for licenses that could be considered for
elimination from state code. In Section III, we summarize required actions and provide
considerations for future reforms. An appendix highlights the department’s previous and ongoing
actions to improve and reform licensure within its ambit.
2 PageSECTION I
Our review of existing regulation identified a number of rules that will benefit from immediate
amendment, some rules that require statutory changes or additional study to reduce barriers and
achieve beneficial changes while preserving necessary protections, and the need for an ongoing
internal rules review process. These findings and actions are described below.
Unnecessary and Amendable Rules
While an executive branch agency has little control over the existence or form of the statutes it is
charged with enforcing, it is accountable for the rules it is both mandated and empowered to adopt
in furtherance of those statutes. Accordingly, the department’s agencies have reviewed its rules
in light of Executive Order 2020-01. Listed below are rules the agency has identified for changes
based on the order. They are separated by division for ease of reference. Some of the rule
changes have been or will be undertaken by the respective divisions. Other changes require
change to the underlying statutes before the agency can amend the rule. Where legislative
change is required, it will be noted below.
Division of Occupational and Professional Licensing (DOPL)
In recent years DOPL has increased its proactive work to rid its rules of provisions with little nexus
to the meaningful regulation of professions. Recognizing the need for this to be an ongoing and
routine process, DOPL used the concepts presented within Executive Order 2020-01 as a
framework to review each of the over 60 chapters that fall within Title 58, along with the
corresponding rules, as part of this review. This intensive process identified a number of rules that
should be repealed or amended to better tailor regulation to public need. These are presented
below in a table identifying key categories of rules to be revisited. In many cases, the relevant
boards have already voted to make changes and the rulemaking process has begun. In other
instances, action remains. Among other things, the changes contemplated for the listed rules
include broader acceptance of various exams, recognition of past experience or competence (i.e.
military experience), and removal of sequence requirements for education and experience.
Reason Rule Section
Over expansive moral character rule R156-11a-302
R156-20b-302
R156-37-303
R156-47b-302d
R156-55d-302f
R156-63a-302f
R156-63b-302g
R156-73-302
Unnecessary or poorly tailored education, R156-22-302f(1)(a)
exam, or experience provisions R156-46a-302a
R156-41-601
R156-47b-302a
R156-54-301
R156-55b-302a/c
R156-55c-302a/c
R156-61-302c
3 PageOutdated rules or rules exceeding the least Various continuing education sections2
restrictive standard to match statute R156-20b-302c
R156-24b-308
R156-31b-301a/b/c/d
R156-64-302c, 304
R156-76-302c(1)
In addition to the in-process changes identified above, the division has also identified many items
that require time and study, and are ripe for evaluation if not immediate action. Over the next year,
the division will work to find the proper solution within these areas. Examples include:
Evaluate the inclusion of professions under Emergency Order Exemptions considering the
lessons learned over the last year working through both health and natural disaster
emergencies.
Explore options with various national testing providers to include offering exams in
additional languages in accordance with Utah Code Section 58-1-311.
Explore ability to offer DOPL practical exams in rural areas. Plans are already proceeding
for plumbing and electrical exams.
Evaluate method of assisting students preparing for entry to professions by developing
testing resources, e.g. lending library for expensive test prep materials.
Review education requirements set by administrative rule to ensure they are tightly aligned
to the professional practice and harm reduction associated with the need for licensing.
Evaluate the efficacy of permitting additional education evaluations for individuals who
received initial training outside the United States or from non-approved programs.
Review criteria set in administrative rule for dental anesthesia permits against best
practices.
Evaluate pathways to licensure for nursing applicants who do not complete the required
exam within 5 years of graduation.
Division of Real Estate
The division has identified a number of rules that can benefit from amendment or repeal, identified
in the table below. Some of these will require statutory changes. For example, rule R162-2c-
201(1)(a)(i) and R162-2c-202 outline the criteria for satisfying the statutory requirement that
mortgage licensees demonstrate good moral character (Utah Code Section 61-2c-203(1)(b)). The
expansive requirement to demonstrate good moral character is a traditional requirement for many
professional licenses but it suffers from overbreadth and risks unmooring actual requirements
from a meaningful nexus with specific professions. While the division will consider whether its rule
is more expansive than the statutory requirement, the Legislature should consider whether the
statute should be tailored to provide guidance better targeted to the public’s and professions’
needs.
Reason Rule Section
Over expansive moral character rule R162-2c-201(1)(a)(i)
R162-2c-202(1)
R162-2g-310(4)
Over expansive crime of moral turpitude rule R162-2c-202(1)(a)(i)(C)(I)
R162-2g-310(4)
Unnecessary Fees R162-2f-105
2All continuing education provisions will be amended to require retention of records for only one two-year renewal
cycle, not the four to six years many sections currently require.
4 Page R162-2g-306b(3)(c)
R162-2f-202d
Increase authority for technology- enabled R162-2c-203(6)(h)(ii)(A)
education
Outdated rules or rules exceeding the least R162-2c-301b
restrictive standard to match statute R162-2f-402
R162-2f-202b(5)(c)
In addition to the existing rules listed above, the division is working on expanding pathways for
licensure. Becoming a licensed appraiser is a complex and difficult process that is often restricted
by the applicant’s ability to obtain timely experience opportunities. Recently, Practical Applications
of Real Estate Appraisal (PAREA) was developed by the Appraisal Foundation, providing a new
pathway for aspiring appraisers to fulfill their experience requirements utilizing technology for
practical experience in a virtual environment. The board and division are working to incorporate
this new experience pathway, providing more opportunities for aspiring appraisers to train and
become licensed in Utah.
Division of Securities
Utah's securities rules are founded in statute and based largely on national model rules. They are
substantively equivalent to those of most other states and consistent with parallel federal
requirements. In addition, two Utah rules served as models for subsequent North American
Securities Administrators Association (NASAA) model rules. (Whistleblower Rule and Venture
Capital Rule). The division adopts new rules only when necessary. Most recent division rules
impose no additional requirements but rather expand exemptions from regulations.
For instance, Rule R164-4-9 exempts some investment advisors from licensure. This rule was
adopted after consultation with stakeholders in the Utah venture capital community and members
of the securities section of the bar to design a rule to remove barriers for venture capital activities
and for investment advisors to institutional investors. Utah's was one of the first such rules, before
the SEC and NASAA model rule. The division is in the process of recrafting the rule, working with
industry stakeholders and the securities section to modernize it and incorporate other beneficial
exemptions, including those added in the NASAA model rule.
The Division of Securities’ comprehensive review revealed that Utah securities rules, and broader
regulatory system, are not overly burdensome, containing numerous exemptions from licensing
and registration while still protecting investors, and are largely based on federal requirements and
nationally accepted model rules. No rules were identified for changes.
Removing Barriers
Multiple ways exist to ease entry and continuation for licensed professionals. The department has
explored these options in recent years, and has done so more deliberately in response to
Executive Order 2020-01. Suggested changes in these various categories will be described in
subsections below. The changes suggested primarily involve legislative changes and are beyond
the department’s ability to address by rule.
The department considered changes that could be made to expand opportunity and markets for
professionals. One way to do this is to split large scope-of-practice licenses into multiple micro-
licenses, allowing narrower qualification for a variety of trades and professions. The department
is also evaluating ways to shift licensing and continuing education requirements to competency
requirements based on each profession’s suitability for such a shift. A shift away from education-
based requirements can likely ease costs and burdens on entry in many cases. Some of these
5 Pagecompetency-based requirements will require expert analysis to guide statutory changes. Other
suggested changes fall into miscellaneous categories and will be described below.
While the department recognized the need for change and is therefore including the concepts in
this report, the short time frame allotted for the executive order review did not allow for an in-depth
analysis of many of these items. Many, if not all, of these changes should undergo a robust review
to ensure the proper balance of regulation is found.
Create narrower licenses from broad scope-of-practice licenses
There are a few obvious places in the Utah Code that could benefit from disintegrating broader
categories into narrower licenses. One subject of repeated attention is the Cosmetology and
Associated Professions Licensing Act, Utah Code Title 58, Chapter 11a. Another area for ripe for
review is the Mental Health Professional Practice Act, Utah Code Title 58, Chapter 60.
In recent years the cosmetology statutes and rules have been challenged for regulating too
broadly practices that might be better suited for narrower licenses. These narrower licenses could
specifically target harm reduction for the public rather than product quality or best practices that
may be addressed by typical market forces. This could correspondingly reduce education and
training requirements.3 Hair braiding, eyelash application, and eyebrow threading are services
that can plausibly be offered with better-targeted training requirements that do not include the full
suite of training required for a broadly scoped cosmetology license.
The Mental Health Professional Practice Act could also benefit from refined scope of practice
rules. The classification of social service worker4 should have its scope of practice reviewed to
evaluate whether changes to educational pathways are warranted and whether an associate level
license is appropriate. Additionally, remaining license types and scope of practice provisions
should be evaluated for necessity and balance.
Competency measures to replace educationally-based requirements when possible
Over time, the apprenticeship models of the past evolved into largely education-based models of
qualifying for licensure. While there is a place for classroom components in training for many
professions, often the increase in classroom education has come at the expense of competency-
based reviews. Whether in initial qualification for licensure or as continuing education
requirements for existing licensees, the public is not always well-served by this shift away from
practical competency. Similarly, many competent professionals have their path toward licensure
burdened by educational barriers with no practical bearing on their competency to practice.
For a professional trained in the US military it is disheartening to finish one’s service to the country
through a trade only to find oneself merely at the beginning of a path toward civilian licensure.
This example is emblematic of the necessary shift toward competency-based evaluations where
appropriate. DOPL has identified areas for review to better incorporate competency-based
evaluations in Utah’s professional licensure system.
Under current Utah law, DOPL’s director may exercise some discretion, often by rule and with a
board’s assent, in allowing a competency-based evaluation to substitute for a time-based one.5
The director may not employ this provision to substitute for an educational component required
3 While there have been legal challenges (Clayton v. Steinagel 2011; Rojas v Steinagel, 2021.), there have also been
repeated discussions with legislators and other interested groups concerned limited scope licenses that currently fall
within the cosmetology statute. This area is one of perpetual tension between legislators, the industry, and reform-
minded groups.
4 Utah Code § 58-60-202 (2) and 58-60-205 (4)
5 Utah Code § 58-1-301(5)
6 Pageby law. The department recommends that this concept be studied to determine if, within certain
professions, equivalent competency-based evaluation could be substituted for educational
components.
Additionally, Utah’s electrical and plumbing trades offer both educational and experience
pathways, as well as a method to expedite licensure by demonstrating competency. 6 This
additional pathway focuses on an individual’s ability to safely practice rather than a one-size-fits-
all set of credentials. In these examples, DOPL and the respective boards were granted rule-
making authority to establish the expedited pathways. This language could be considered for
other licenses, allowing for expedited licensure pathways where appropriate.
DOPL has also identified that some of its own rules might create limits where none are necessary.
For example, it will review R156-11a-901, which does not allow on-the-job internships to apply
towards credits required for graduation.
DOPL has also tasked its boards with reviewing DOPL’s rules with an eye toward identifying
professions for which continuing education requirements might be replaced by competency-
based ones. These might include work or volunteer options that provide other benefits to the
public and participants. Instead of requiring accredited courses, the rules might accommodate
employer-required in-service hours aimed at harm reduction. Military training might also fulfill
requirements that are now met only through accredited courses.
Over the last several legislative sessions, DOPL statutes were modified to allow for increased
acceptance of other jurisdictions licenses. Specifically, SB 23, 2020 General Session, allowed for
DOPL to issue a Utah license to a licensee from any U.S. state, district, or territory if the scope of
that jurisdiction’s license was similar to the Utah scope and the individual had held the license in
good standing for at least one year. A similar provision may be appropriate for real estate
professionals; however, it is recommended that all applicants be required to take and pass the
24-hour Utah law portion of pre-license education.
Miscellaneous issues identified
Among the other matters identified for possible change are a number of isolated provisions in
statute and rule that might be altered or removed to better enable reasonable professional
licensure while continuing to protect the public. Most of these suggestions involve statutes but
some have rule components that the divisions will address with the relevant boards.
Within DOPL’s pertinent areas, a number of miscellaneous issues have been identified for further
action or evaluation through a robust review process. These appear in the following table.
Profession Issue
Multiple Professions Review high school or equivalent graduation requirements to
determine necessity
Identify if foreign education or non-approved schools could
undergo evaluation for adequacy of coursework
Evaluate whether pre-professional or general studies classes can
be waived or completed by testing
Evaluate specific endorsement restrictions against changes
made by 2020 GS Senate Bill 23
6 Utah Code § 58-55-302
7 Page Consider narrowing the circumstances under which use of
specific terminology is prohibited without professional licensure
(i.e. prohibiting using the term “engineering” to describe activities
to be performed if the individual offering is not licensed (Section
58-22-305(1)); a marketing approach touting a well-engineered
multi-tier wedding cake should not be prohibited)
Cosmetology Evaluate reduction of apprentice hours
professions Evaluate if barbers should be authorized to perform some skin
care.
Pharmacy Engage in complete rule review after recodification of the
statutory Pharmacy Practice Act is complete
Design Professions Amend the definition of “principal”7 to reflect changing industry
norms
Mental Health Consider reduction of post-graduate hours8; Utah requires 4,000
Professions which includes general duties, while most other jurisdictions
require 3,000 or fewer if targeted to professional competencies
Study supervision requirements to ensure appropriate balance,
reporting requirements, and related details
Vocational Consider reduction of post-graduate hours; Section 58-78-302;
Rehabilitation Utah requires 4,000, while most other jurisdictions require 3,000
Counselors
Professional Review experience requirements; Section 58-76-302(4) requires
Geologists five years of practice with a bachelor’s degree; other professions
require only four
Athlete Agents While this is a uniform act, registration requires a number of
items that are not used or useful (for example, Subsections 58-
87-202(1)(a) (place of birth); (c), (e)-(f), and (2)-(4)
The Division of Real Estate has identified that the Real Estate Licensing and Practices Act
contains a few provisions that would benefit from legislative change. First, Section 61-2f-
204(1)(e)(ii) requires that a license be denied if an applicant fails to disclose certain criminal
history. While a failure to disclose such an industry-related crime is serious, the DRE has
concluded that denial in such circumstances should not be automatic. Instead, discretion should
be given to account for the unique circumstances of each case. Likewise sections9 that reference
the general term “good moral character” should be modified to remove the ambiguous term and
allow the division discretion for unique circumstances that consider the individual applicant’s
aggravating and mitigating circumstances.
Ongoing Departmental Rule Review
In May of this year, Executive Order 2021-12 highlighted that, “the public is best served by clear,
cohesive, and concise administrative rules.”10 The department has generally done well at this,
both in initial drafting and in statutorily mandated rule reviews under Section 63G-3-305. However,
the department’s work on Executive Order 2021-01 has shown this must be an ongoing and
7 Utah Code § 58-3a, 58-22, and 58-76
8 Utah Code § 58-60-205, 58-60-305, 58-60-405
9 Utah Code § 61-2c-203; 61-2e-201; 61-2g-311, 313, and 314
10 https://rules.utah.gov/wp-content/uploads/Utah-Executive-Order-No.-2021-12.pdf
8 Pageregular process that ensures the rules balance necessary protections without creating
unnecessary barriers.
The department will institute internal processes addressing both executive orders, requiring
existing rules and proposed rules be carefully considered for both quality and effectiveness, within
statutory constraints. While statute requires agencies to review administrative rules, the
department will implement a more robust review process for occupational licensing rules. This
process will ensure a more deliberate review than the statute requires and prevent accretion of
rules that can hinder thriving professionals and their clients.
As the department develops a new process for the mandated five-year reviews, each division with
rulemaking authority will assign an Administrative Rules Coordinator. The coordinator will receive
training from the Office of Administrative Rules and be responsible to coordinate the rulemaking
process within their division and with the department. For each initial rule and rule change, the
Administrative Rules Coordinator will ensure that:
each rule has been drafted using logical, understandable, and concise language to
facilitate compliance and enforcement;
interested parties have been given opportunity to participate in the development of the
administrative rule pursuant to Subsection 63G-3-301(3);
standards reflect consistent and sound public regulatory policies;
the rule is consistent with the current edition of the Office of Administrative Rules’ Rule
Writing Manual for Utah; and
the division evaluates the content of the rule to ensure the rule is necessary and adopts
the least restrictive, practical method of implementing the requirements.
For each rule’s statutorily mandated five-year review, a more extensive review will be undertaken
to identify rules that are no longer necessary or can be amended to reduce barriers. The division
and department will consider a variety of items. Among these will be a more explicit review of the
statutory authority for the rule, not just to identify if the rule is authorized, but also to ensure the
rule’s scope is narrowly tailored to match the authority. Additionally, the department may evaluate
trends related to the profession, new technology, market innovations, and changed scopes of
practice to assess whether the rules might adapt to reflect changed conditions and better serve
Utahns while remaining faithful to the statute and protection of public interests.
This thorough review will help identify not only rules that might be altered to better suit changing
markets and needs, but matters that can be brought to the legislature for consideration. While the
department administers only what the legislature dictates, it can bring its expertise to bear to
inform the legislative process when change should be considered. In addition to this heightened
review of administrative rules, the legislature should consider a more functional, permanent
process for occupational licensing review with a scope broader than the department’s
administrative rules.
9 PageSECTION II
Regular, Systematic Review of Professions
The current system for periodic review of professional licensing has not functioned well. The
legislature established the Occupational and Professional Licensure Review Committee to
evaluate proposals for new types of professional licensure, to routinely examine existing
professional license categories, and to provide a more thorough review of each licensed
occupation at least once every ten years.11. Review criteria within current statute captures many
best practices; however, the lack of funding or support for the committee has impeded its function.
As such, throughout its existence the committee has rarely performed the required reviews.
Nearly all stakeholders the department consulted in its review expressed frustration at the lack of
a predictable process for reviewing occupational licensing matters. As stakeholders have adapted
to the Occupational and Professional Licensure Review Committee’s limitations, reforms have
occurred intermittently as industry or other public interest groups muster the support for measures
designed to tackle specific concerns.
As noted in the discussion of departmental rules above, periodic reviews of regulations can help
prevent a stifling accretion of restrictions that might serve (or once have served) some useful
purpose in isolation but combine to create unnecessary barriers to enter the profession or
negatively affect the people and professions they are intended to protect. A new system for
broader review should be strongly considered. The department proposes one here.
Regular, ongoing, impartial review by the executive branch
One of the key insights from stakeholders the department consulted was that an executive branch
review and advice process could be more predictable and insulated from political influences than
the existing Occupational and Professional Licensure Review Committee process. Such a
process would continue to allow the legislature to be the key decision maker on occupational
licensing issues while benefiting from the regularity and expertise of the executive branch.
Wherever the executive function is located, it would be guided in its work by legislative priorities
and report its work to the legislature for ultimate action. If it suggested actions that were within
the then-current authority of other agencies to address, those agencies would be required to
independently adopt those recommendations, or not, based on their own authority. This structure
matches feedback the department received.
Various groups opined that an executive branch review could provide greater impartiality and
distance from legislative decisions that might result in better information for legislative decision
makers. Of course, such a system must be trusted by all stakeholders, including the Governor,
legislature, trade associations, public interest groups, affected agencies, and the public.
Professional licensure reform groups affirm these conclusions, with their suggested best practices
including robust, ongoing professional review with expert analysis.
Through research and discussion with stakeholders, the department has identified a number of
parameters the legislature might consider for such an executive review process. These address
the organizational location of the process, its necessary funding and funding mechanism, and
professions that might be included.
The department recommends the location of the proposed ongoing review be the Department of
Commerce. Commerce has the benefit of deep, ongoing expertise about not only the professions
it regulates, but with broader reform efforts, market trends, and relevant data. Concerns about
potential conflicts with locating the function would be mitigated with dedicated review staff, located
11 Utah Code Section 36-23-101, et seq.
10 P a g ewithin Commerce but not within the licensing divisions, that are removed from the day-to-day
functioning of license approvals and discipline.
An ongoing effort that enables review of each licensed profession every ten years, while allowing
for legislative prioritization and one-off reviews to address immediate legislative proposals, would
require four full-time equivalent positions if located in Commerce. This would allow maintenance
of ongoing expertise sufficient to handle both regular reviews and other proposals that are
currently within the Occupational and Professional Licensure Review Committee’s purview.
Funding could be achieved with an additional appropriation from existing fees collected in the
Commerce Service Fund. The department’s fees regularly bring in more revenue than
appropriated to the department. Increasing the department’s appropriation from its collected fees
to cover the cost of this program would allow full program funding without increasing fees for
licensees or reducing funds available for any other licensing agency’s ongoing funding.
This executive function would include all licenses issued by executive branch agencies within the
State of Utah.
Ongoing legislative input to executive branch
Creating a new executive review process for occupational licensing is likely to increase the
legislature’s input in occupational licensing matters. It will do so by providing more frequent and
realistic opportunities for considered legislative guidance instead of intermittent consideration of
proposals brought by others. Intermittent proposals by other interests would, of course, not be
prohibited.
The existing Occupational and Professional Licensure Review Committee has not met frequently
and has not undertaken many of the statutory functions assigned to it. The department’s review
suggests this is largely the function of constraints on legislative service and resources. Legislators
and their staff are busy with a variety of meetings and functions. Legislators and their staff cannot
engage in full-time consideration of each area of state government. Dedicated professionals
cannot always dedicate themselves to every area of their profession each year. Further, limited
budget resources cannot always be employed by the legislature to procure expert analysis of
areas beyond its native expertise. Legislative delegation to an executive entity to engage in
deeper analysis is more likely to allow consistent, meaningful legislative input.
The work of an executive agency reviewing occupational licensing provisions would be informed
in the first instance by a set of codified legislative principles and directions, as well as incorporate
executive input. Additionally, the legislature could annually prioritize reviews for consideration and
request one-off, quick responses to legislative proposals. Reviews could include broad evaluation
of professions, universal analysis of education provisions, market evaluations, and other as-
needed matters. Annually prioritized and one-off reviews would be additional to the scheduled,
ongoing reviews of each profession every ten years. The executive agency charged with these
reviews would perform its work on an ongoing basis as informed by legislative priorities.
Individually or collectively, the results of these reviews would be reported to the legislature for
consideration for further action, and include stakeholder input specific to the completed analysis.
Thus, the legislature would begin its legislative work by prioritizing issues for consideration based
on informed executive input and conclude its legislative work by implementing, or not, executive
recommendations, that include stakeholder input, based on earlier legislative input.
Under this updated process, more frequent review of all professions would occur systematically,
with an emphasis on nimble legislative guidance. This would promote responsive, relevant, and
reliable regulation that would reduce frustration and pain points for licensees and other
11 P a g estakeholders and facilitate trusted and ongoing licensing reform as part of Utah’s legislative and
regulatory DNA.
Licenses to consider for evaluation utilizing the proposed process
The department’s current review of existing licenses revealed some license classifications that
should be evaluated through the proposed process. In many cases these are classifications
practicing in a narrow set of circumstances that are related to other existing licenses. Others seem
to have limited utility or other circumstances warranting elimination.
Profession Explanation
Environmental Health License is required for only employees of government agencies
Scientist that can monitor competence and performance
58-20b There are numerous exemptions
A national certification is the basis for licensure
Medication Aide Expands the CNA designation, allowing medication tasks. This
Certified may be more effectively accomplished through an exemption for
58-31b a properly trained CNA
Currently requires 2,000 hours experience, 60 hours education,
40 hours on-the-job training, and an exam
Federal legislation requires health care facilities to perform
background checks, which will reveal many of the issues DOPL’s
review was designed to address
Controlled Substance Review possible reduction from license to registration
Precursors Current requirement is for reporting, with no qualifications to
58-37c obtain the license
Evaluate FDA, DEA, and other federal requirements to ensure
Utah is not duplicating reporting requirements
Therapeutic One of three related classifications
Recreational This classification is limited to on-site supervised activities
Technician Duties are limited and generally overseen by other licensees
58-40 The lack of independent scope suggests licensure may be
unnecessary to protect the public
12 P a g eCertified Dietician Current certification simply verifies national certification
58-49 No unlawful conduct or other scope provisions exist in Utah law
Countervailing considerations may exist if continued licensure is
needed for medical insurance reimbursements (current CMS
guidance do not require this, so state certification is likely
unnecessary to qualify)
Building Inspector Building inspectors are employees of or contractors for regulatory
58-56 agencies that can monitor competence and performance
A national certification is the basis for licensure
Deception Detection Duplicated requirements as individuals who are licensed are
Examiners, Interns generally employed by law enforcement agencies, and are POST
and Examination certified
Administrators Currently only 32 licensees (20 Examiners, 1 Intern, 11
Examination Administrators
State Certified Court Current certification simply verifies national certification
Reporters Judicial branch oversees its employees’ certification
58-74
Certified Medical Current certification simply verifies national certification
Interpreters No additional harm reduction measures within Utah law
58-80a Statute offers competitive edge by allowing Department of Health
and the Department of Human Services to give preference when
awarding contracts to state-certified providers (58-80a-601)
Online Prescribing, Evaluate need for all three classifications. There are currently 2
Dispensing, and online facilitators, 2 online contract pharmacies, and 3 online
Facilitation prescribers.
58-83 If need is identified, consider restructuring as a certification or
endorsement to expand the scope of another existing license
State Certified Music Current certification simply verifies national certification
Therapist The only conduct provisions are discipline by the national
58-84 organization
The state certification appears to serve merely as title protection
State Certified Current certification simply verifies national certification
Commercial Interior Scope is very limited; design is covered only when a permit is
Designers obtained independent of an architect in certain circumstances;
58-86 other interior design is exempt
13 P a g eSECTION III
Required Actions
The Governor and legislature should consider the following actions.
Modification to board and division duties
An integral part of any program, plan, or partnership is clear expectations. Over the last decade,
the legislature has demonstrated a desire for the department to be mindful of licensing reform.
Executive Order 2021-01, issued just hours after inauguration, emphasized the same message.
It is requested that general authority be added to the duties of each division and the boards they
oversee to include language that focuses these expectations. For example, the Division of
Occupational and Professional Licensing Act could be modified as follows:
In 58-1-202, modify the first board duty, subsection (1)(a), to “(a) recommending to the
director appropriate rules and statutory changes, including removal of barriers that are no
longer necessary or effective in protecting the public and enhancing commerce.”
In 58-1-301, amend subsection (1)(b)(i) to “(i) contain documentation of the particular
qualifications required of the applicant to comply with these statutes or rules promulgated
under these statutes”;
In 58-1-401, provide language to address creating rules for aggravating and mitigating
circumstances that allow the division to provide individual consideration to applicants.
Statutory changes
The department’s primary focus was to evaluate the administrative rules within its purview to
identify those that are no longer necessary or could be amended. In doing so, however, many
items were also identified within statute that create barriers, could be more closely tailored to
address harm, or provide clarity. Previously, in Section I: Reducing Barriers, concepts were
presented that would require additional review prior to concrete statutory change proposals. In
addition to those suggested review items, many areas of statute lend themselves to immediate
solutions. Below is a list of suggested modifications to statute addressing those needs.
Profession Reason
Title 58, Multiple: Overbroad good character provisions should be
Funeral Services 58-9-302 removed in favor of the standards found in 58-1-401
Health Facility Administrator
58-15-4(1)
Veterinary 58-28-304
Nurse Midwife 58-44a-302
Burglar Alarm 58-55-
302(3)(k)(vii) and (l)(iii)
Security 58-63-302
Deception Detection 58-64-
302
Online Prescribing,
Dispensing, and Facilitation
58-83-302
Title 58, Multiple: Individual section endorsement provisions are out of
Podiatry 58-5a-305 line with 58-1-302, and overly restrictive considering
Health Facility Administrator the profession
58-15-4(6)
Optometry 58-16a-302
14 P a g e Veterinary 58-28-304
Health Facility Administrators: General recodification to match division’s standard
58-15 outline
Environmental Health Scientists Rather than overbroad “Food Quality,” the term
58-20b-102(4)(ii): should be changed to the more measured, harm-
focused “Food Safety”
Engineers Remove the word “direct” from supervision
58-22-102(10) requirements, and reference the definition of
supervision in Section 58-22-102(16)
Speech Language Pathologist and The board has requested that an exemption from
Audiologists licensure be created for the practice of Newborn
58-41 Hearing Screenings that is similar to the exemption
for elementary audiometry found in 58-41-4(1)(i).
Rather than being employed by a medical doctor,
however, the exempt individual would be the trained
representative of the program responsible for the
newborn hearing screening
Security Replace corporate officers with “responsible
58-302(1)(c)(ii) management personnel”
Chiropractic Exams are incorrectly identified/named. Subsection
58-73-302(1)(e) (i)(B) is clarified in rule to be either Part III or the
SPEC; Subsection (i)(C) should be “Physiotherapy”
Consider whether a rule grant of “or other
equivalent” could be added (similar to (iii)) so DOPL
can address future exam updates nimbly
Utah Vital Records Include Certified Nurse Midwives in the definition of
26-2-2(11) “health care professionals”
Residential Mortgage Remove overbroad good character provisions
61-2c Remove language authorizing the division to collect
“reasonable expenses incurred by the division in
processing the application” in favor of only the
division’s set application fees
Allow for a mortgage licensee to have a license
revocation vacated after a hearing before the
mortgage commission
Appraisal Management Company Remove overbroad good character provisions
61-2e Remove requirement that an individual in violation
of the chapter pay the costs incurred by the division
Real Estate Remove automatic revocation for failure to disclose
61-2f a criminal record in favor of allowing discretion
based on aggravating and mitigating circumstances
Remove fee for changing an address, name, etc.
Remove requirement that an individual in violation
of the chapter pay the costs incurred by the division
Clarify or provide rule making authority surrounding
the difference between commission sharing and the
legality of inducement and closing gifts
Real Estate Appraiser Remove overbroad good character provisions
61-2g
15 P a g eConsiderations for Future Licensing Reform
The review effort the department undertook in response to Executive Order 2021-01 was robust.
While many actions have occurred and will soon occur to implement findings, other areas were
identified that are susceptible for future study. Thorough review of these items could not occur
during the time set for completion of this review. Below are items the department, the legislature,
or a future executive reviewer might profitably consider for future reform. A few of them have
general application while others are specific to certain professions.
General
Study effectiveness of the required Suicide Prevention Continuing Education requirement
that was added to multiple professions to determine if adjustments should be made.
Evaluate existing fee waivers authorized by statute and whether additional criteria should
be added. Section 58-1-301.3 currently allows for fee waivers of DOPL applicants for
active duty military and those that receive certain state benefits.
Evaluate if an individual who receives a temporary license under Section 58-1-303 should
receive two opportunities to take the exam, rather than only one, or if this should be left to
individual professions to determine risk.
Profession/section specific
Pharmacy: Complete an extensive rule review after the current recodification is complete.
Additionally, evaluate the following statutory provisions:
o 58-17b-305 and 305.1(2) Review necessity of specifically excluding Pharmacists
from downgrading to Pharmacy Technicians.
o 58-17b-302 Evaluate the need for each physical location of pharmacy to hold a
separate license. Additionally, evaluate the need for new licensure for change of
ownership, name, etc.
Nurses: Evaluate removal of the outright, lifetime ban on violent felonies and possibly
allow the division to apply the standards outlined in 58-31-302(9) to all charges (58-31b-
302(8)).
Controlled Substances: In conjunction with recodification of 58-17b, evaluate standards in
statute and rule (esp. those found in the 600 series of R156-37) to ensure least
restrictive/national standards are met (Chapters 37 and 37f).
Nurse Midwives: Evaluate current Certified Nurse Midwife’s controlled substance authority
to determine if it should mirror their APRN peers, whose scope includes schedule II and
III (58-44a-102 (9)(c) and 58-31b-803)
Elevator Mechanics: Requirement that training be within the last ten years does not appear
to be within any rule grant of statute (R156-55e-302a(1)(c)). Evaluate need and intent.
Landscape Architects: Evaluate need for Landscape Architect Board (Section 58-53-201),
which has not met since 2019.
Security Personnel: Study the possibility of reducing continuing education requirements
by requiring post-licensure in-service within the first 3 or 6 months that specifically address
core competencies needed (Chapter 63).
Real Estate: Evaluate the reinstatement criteria found in 61-2f-204(2) to ensure the criteria
are properly balanced and appropriately targeted to reduce the potential harm associated
with re-entry into the profession.
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